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Copyright and Fair Use

A Guide to Information and Resources Related to Copyright and Fair Use

Lecture Capture

Copyright and Lecture Ownership

According to the Texas Tech University Intellectual Property Policy (O. P. 30. 22), the individual faculty member owns the copyright in authorized recordings of his or her lecture or class.

TTU reserves the right to to record faculty lectures and to allow students registered for the course to view recorded lectures that may be posted online.

 If the recording is to be distributed to the public and not limited to internal use, then a release should be secured from the speaker for distribution or the speaker should license the video with a creative commons license that would grant such use.

Privacy Concerns

There are Three areas of Privacy concerns in recording a lecture or classroom: the general audience, Identifiable individuals, (guests, questioners, panelists etc.) and Student work or presentations protected under FERPA as an "Educational Record."

First, for the general audience in a classroom, it is probably sufficient that they be informed that the lecture will be recorded and made available on the internet.  This can be done on a slide displayed before class or on the syllabus. The following offers sample language you might import directly into a syllabus: "Lectures may be recorded and made available to students registered for this class using the lecture capture system. Use of lecture capture is intended to supplement the classroom experience. Duplication or redistribution of lecture capture recordings is prohibited without appropriate consent.

Next, if the lecture will include students' questions or responses or a group discussion, or guest speaker, you should ask identifiable students or guests to sign a consent form when the audience is broader than the class itself.  

Finally, when the lecture capture is used to disseminate student presentations, small group discussions, or seminar classes in a course made public or if it will be used in a future semester, faculty members will be responsible for obtaining student consent (a FERPA waiver) prior to distribution.

Copyrighted Content Outside the Classroom

If the content used in a presentation is copyrighted, we can no longer rely on the existing exceptions for face to face teaching when distributing the content to the public.  The content would have to meet the criteria for fair use, be substituted for content that is licensed for reuse, or permission would have to be secured before distributing the lecture to the public on the internet.

Copyright and Accessibility

Copyright Exceptions for Persons with Disabilities

Current U.S. copyright law lacks a blanket exception for accessibility (concerning learners with disabilities), relying instead on a patchwork of statutory exceptions and the doctrine of fair use.

There are debates about whether universities qualify as authorized entities, but universities generally argue that they qualify due to legal obligations (Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) and educational purposes-- just as an organization such as the National Library Service for the Blind.

International Considerations

U.S. copyright law may also be influenced by international agreements. One international treaty directed to making works more accessible is the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities (“Marrakesh VIP Treaty”). The Marrakesh VIP is an international treaty administered by the World Intellectual Property Organization (WIPO) which would obligate signatory countries to create mandatory limitations and exception to their copyright laws. 

The treaty would also permit exchange of accessible works across borders by authorized entities serving the blind, visually impaired and otherwise print disabled. 

Fair Use and Accessibility

One exception in copyright law that has been instrumental in filling in the gaps left by these narrow exceptions (e.g. Chafee Amendment) and promoting accessibility for copyrighted works has been fair use. A recent decision by the Court of Appeals for the Second Circuit has reinforced the significant role of fair use in increasing the accessibility of copyrighted works.

In Authors Guild, Inc. v. HathiTrust, HathiTrust created a shared digital repository of collection materials from academic and research member institutions, allowing full access to patrons with qualifying disabilities. The district court held this activity was permissible under the Chafee Amendment, stating that educational institutions “have a primary mission to reproduce and distribute their collections to print‐disabled individuals…[making] each library a potential ‘authorized entity’ under the Chafee Amendment.” The court held, however, that HathiTrust was not precluded from relying on the defense of fair use in the event that they were not authorized entities or did not otherwise fall within the permissible categories of the Chafee Amendment. On appeal, the Second Circuit held that providing full digital access to print-disabled patrons was protected under fair use. 

Copyright and Student Work

TTU Policy for Ownership of Student Work

According to TTU Policy and Regent's Rules, students own the copyright to original work created during the course of their education. This includes items such as term papers, dissertations, theses and journal articles. It also includes artistic works.

OP 74.04,15-a-1

Privacy Concerns

Using a slide or the syllabus to inform a general class audience that the lecture will be recorded and made available on the internet is usually sufficient. Lectures that include or disseminates students' questions/responses, a group discussion, student presentations or a guest speaker, means the faculty is responsible for asking identifiable students or guests to sign a consent form when the audience is broader than the class itself-- such as using it in future classes or making it publicly available.

Guidelines for Using Student Work

Guidelines for Using a Student's Work Once permission has been obtained, there are some easy guidelines to follow:

1. Do not use, publish and/or associate a student's last name with the work;

2. Do not use, publish and/or associate any personal identifying material such as a picture, student ID #, phone number, a nickname, the year of graduation, a major, etc., with the work;

3. Do not use, publish and/or associate any web pages of a student with the work; and,

4. Do acknowledge that the work is used with the consent and the written permission of the student author, composer, programmer, etc.

Please note that permission in writing must be obtained from the student to use any of the personal information listed in 1, 2, and 3 above. 

Fair Use of Student Work

What about Section 107 of the Copyright Law: Fair use? Fair use does apply to a student work, but fair use involves an analysis that requires meeting the Four Fair Use Factors: the purpose of the use; the nature of the work; the amount used; and the market effect. While the market effect factor would only apply to a student's work being in someway embedded in a commercial use, the third factor of fair use, i.e., the amount being used, does apply. Fair use allows a limited amount of copyrighted material [including student works] use for a limited time. Failing those limits is an infringing act.

Student Work for Hire

The situation of IP ownership by a student who is paid by a college or university for creating intellectual property can vary from institution to institution, but the majority view seems to be that students who are paid for their work fall under the work-for-hire doctrine. Muddying the waters, however, is the case of a graduate student who was paid for his work by the University of Wisconsin, Madison, and who was determined to be a joint author in a Seventh Circuit U.S. Court of Appeals decision in Seshadri v Kasraian, No. 97-1610, 7th Cir.